The Issue At issue is the amount owing for reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees.
Findings Of Fact The award provisions of the Plan 1. When it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1)(c), Florida Statutes, provides for an award of the following expenses: (c) Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. Here, Mr. Gustafson's Affidavit as to Reasonable Attorney's Fees, Paralegal Fees and Expenses Incurred in Connection with the NICA claim (Petitioners' Exhibit 1) described the claim for expenses, as follows: I am seeking an award for my attorney's fees totaling $85,680.00, reflecting my reasonable time necessarily expended in pursuit of NICA benefits (285.60 hours) at the reasonable rate of $300.00 per hour. I am also seeking an award of paralegal fees totaling $10,780.00 reflecting my paralegal's reasonable time necessarily expended in pursuit of NICA benefits (107.8 hours) at the reasonable and uncontested rate of $100.00 per hour. The reasonable hourly rate reflects the complexity of the case, the contingent nature of the fee, the substantial risk of non-recovery, and the other factors set forth in section 766.31(1)(c)(1-6), Florida Statutes. The time reasonably expended in pursuit of this NICA claim is set forth supra in this Affidavit [by date and activity], as well as in Exhibit 2.[2] I am also seeking an award for expenses reasonably and necessarily incurred in connection with the filing of Petitioners' claim and pursuing NICA benefits under sections 766.301 - 766.316, Florida Statutes. The total of the expenses reasonably incurred in pursuit of NICA benefits is $22,102.16. The itemized expenses incurred in pursuit of NICA benefits are attached and made a part of Exhibit 2 to this Affidavit. The expenses set forth in Exhibit 2 are an accurate accounting of the expenses reasonably and necessarily incurred in pursuit of NICA benefits for Petitioners. Proof of these expenses are attached as Exhibit 3 to this Affidavit.[3] In response to Petitioners' claim, Respondent, through its expert (Respondent's Exhibit 1), initially accepted 198.8 hours of attorney time and 97.1 hours of paralegal time, as reasonably expended, and specifically identified those hours that should be deducted.4 Centex-Roony Construction Co., Inc. v. Martin County, 725 So. 2d 1255, 1259 (Fla. 4th DCA 1999)("Although the fee applicant has the burden of establishing its entitlement to an award of attorney's fees, . . . the opponent of the fee award has the burden of pointing out with specificity which hours should be deducted."). However, the parties further agreed that, if appropriate, any time or expense identified at hearing as associated with the notice issue should be deducted.5 Here, it should not be subject to serious debate that any time or expense associated with the notice issue should be deducted. Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103, 1109 (Fla. 3d DCA 1994)("Plainly, the exploration of the possibility of opting out of NICA through the 'bad faith' exception or otherwise is not, as the statute requires, work performed 'in connection with the filing of a claim . . . .'"). See also Braniff v. Galen of Florida, Inc., 669 So. 2d 1051, 1053 (Fla. 1st DCA 1995)("The presence or absence of notice will neither advance nor defeat the claim of an eligible NICA claimant who has decided to invoke the NICA remedy . . .; thus, there is no reason to inquire whether proper notice was given to an individual who has decided to proceed under NICA. Notice is only relevant to the defendants' assertion of NICA exclusivity where the individual attempts to invoke a civil remedy."). Accord, O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We recognize that lack of notice does not affect a claimant's ability to obtain compensation from the Plan."). The claim for attorney's fees The initial step in deriving a reasonable attorney's fee is to determine the number of hours reasonably expended to pursue the claim. Here, Petitioners claim 285.60 hours6 were dedicated to the claim, which they chose to identify in three phases: 18.7 hours claimed to investigate the claim (assemble the necessary records, consult with experts, legal research) and prepare the petition for NICA benefits (July 12, 2002 - June 17, 2005); 252.6 hours claimed following the filing of the petition through the entry of the Order on Compensability and Notice (July 28, 2006), and discussions related to that Order (June 22, 2005 - August 4, 2006); and 14.3 hours claimed identifying, calculating, and substantiating the nature and amount owing for expenses previously incurred (August 8, 2006 - September 25, 2006) Addressing first the 18.7 hours claimed for the period of July 12, 2002 - June 17, 2005, it is apparent, as noted by NICA, that the time which preceded the abatement of the civil action (5.8 hours, through "8/ /03") was dedicated to the civil lawsuit and not the NICA claim.7 However, the time was related to acquiring the medical records related to Lily's birth, which were required to file a NICA claim, and should be compensated. The hours claimed from December 2, 2003, through April 21, 2005 (3.9 hours) were, with the exception of .6 hours claimed for December 6, 2003 (.3 hours) and January 6, 2004 (.3 hours), relevant to the investigation of the claim, including the assembly of medical records and expert consultation. Finally, the hours claimed from June 9, 2005, through June 17, 2005 (9.0 hours) for research and drafting the NICA petition are reasonable and related to pursuing the claim, with the exception of time researching the notice issue and drafting that portion of the petition which raised the notice issue. Therefore, the hours claimed are reduced by 1.2 hours (.6 hours for June 9, 2005, and .6 hours for June 10, 2005) to eliminate any time associated with the notice issue.)8 Overall, 16.9 hours were reasonably attributable to pursuing the NICA claim from July 12, 2002, through June 17, 2005. Regarding the 252.6 hours of attorney time claimed for the period of June 22, 2005, through August 4, 2006, it must be resolved that the hours claimed are in many cases excessive, and do not reflect the time and labor reasonably and necessarily incurred to pursue the claim. In so concluding, it should be noted that in drafting the Order on Compensability and Notice, entered July 28, 2006, all the evidence of record was reviewed a number of times, and that in preparation of this Order the file of the Division of Administrative Hearings (all documents that were docketed) was reviewed, and the evidence offered at the hearing on compensability and notice (including depositions) re- reviewed, as necessary. Moreover, the testimony of Mr. Gustafson has been carefully weighed, and compared with the record, as were the affidavits of Mr. Hinkle and Mr. Pierce. Having done so, it is apparent that Mr. Pierce spent considerable time analyzing the hours claimed for reasonableness, and Mr. Hinkle did not. It is further apparent that when one critically evaluates the hours claimed, they are excessive, and that for the period of June 22, 2005, through August 4, 2006, no more than 188.25 hours of attorney time was reasonably and necessarily expended in pursing the claim.9 The 14.3 hours of attorney time claimed for the period of August 8, 2006, through September 25, 2006, was reasonable and necessary.10 Therefore, the total time and labor reasonably expended to pursue the claim was 219.45 hours. The next consideration in establishing a reasonable fee is the determination of the fee customarily charged in the locality for similar legal services, when the fee basis is hourly billing for time worked. Carreras, 633 So. 2d at 1108. Here, Petitioners' expert, Mr. Hinkle, opined that "the customary charge in this community for an attorney of Mr. Gustafson's ability is no less than $300 per hour." However, in Mr. Gustafson's Affidavit as to Reasonable Attorney's Fees, Paralegal Fees and Expenses Incurred in Connection with the NICA Claim (Petitioners' Exhibit 1), he describes his claim to a rate of $300.00 per hour as an enhanced rate, which "reflects the complexity of the case, the contingent nature of the fee, the substantial risk of non-recovery, and the other factors set forth in section 766.31(1)(c)(1-6), Florida Statutes." The parties' Pre-Hearing Stipulation and Mr. Gustafson's testimony at hearing were of a similar nature. (Transcript, pages 78-81, and 96) Stated otherwise, absent enhancement, Mr. Gustafson was of the opinion that a reasonable fee for his services was less than $300.00 per hour.11 In contrast, Respondent's expert, Mr. Pierce, described "a range of hourly rates for this type of work between $75.00 an hour and $190.00 an hour," and that, given "the level of experience of Petitioners" counsel and his education," "$150.00 an hour was a reasonable rate for Mr. Gustafson's time.12 Here, given the nature of the expertise and legal skills required, for what may be described as a moderately complex case, the proof supports the conclusion that the "market rate" (a rate actually being charged to paying clients) is $170.00 an hour. A reasonable fee under the methodology established by Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, supra, is determined by multiplying the hours reasonable expended by the reasonable hourly rate. The results produce the "lodestar figure" which, if appropriate, may be adjusted because of the remaining factors contained in Section 766.31(1)(c), Florida Statutes. Applying such methodology to the facts of this case produces a "lodestar figure of $37,306.50 (219.45 hours x $170.00 per hour). Upon consideration of the facts of this case, and the remaining criteria established at Section 766.31(1)(c), Florida Statutes, there is reason, based on the contingency nature of Mr. Gustafson's fee arrangement with Petitioners, to adjust the "lodestar figure."13 Given the nature of the claim, the risk of non-recovery was significant and warrants an adjustment of the fee award to $48,498.45 (an enhancement of thirty percent). The claim for paralegal fees Pertinent to the claim for paralegal fees, the affidavit of Mr. Gustafson (Petitioners' Exhibit 1) seeks compensation for 107.80 hours of paralegal time expended by Bonnie Stark between October 24, 2005, and September 25, 2006. Respondent disputed only 10.7 hours of Ms. Stark's time, and the parties stipulated that an hourly rate of $100.00 was reasonable for paralegal time. The affidavit of Mr. Pierce (Respondent's Exhibit 1) identified the following time entries which he resolved should be excluded as a matter of law because they included a conference between Mr. Gustafson and Ms. Stark, which Mr. Pierce felt was "duplicate time" and not recoverable under Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d at 1110: 2/5/06 -4.0 (block billing with an unreimbursible conference - see Carreras) 5/12/06 -.3 (Unreimbursible conference - see Carreras) 5/17/06 -5.1 (block billing with an unreimbursible conference - see Carreras) 8/23/06 -.5 (Unreimbursible conference - see Carreras) 8/31/06 -.3 (Unreimbursible conference - see Carreras) 9/20/06 -.5 (Unreimbursible conference - see Carreras) However, communication between counsel and paralegal, regarding her duties, is not comparable to "duplicate time involved in communications between co-counsel," as proscribed by Carreras. Moreover, the discussions in this case were not excessive. Accordingly, it is resolved that 107.8 hours of paralegal time was reasonably expended, which at the agreed rate of $100.00 per hour produces an award of $10,780.00. The claim for other expenses Finally, Petitioners' counsel incurred certain expenses in his representation of Petitioners for which he seeks recovery. Such costs total $22,352.19,14 and NICA disputed $11,310.59 of those expenses.15 The disputed expenses were identified as follows: DISCOVERY DOCUMENTS AND OTHER NICA PETITION EXPENSES: Research Book: "Maternal-Fetal $51.60 Medicine: Principles and Practice Westlaw charges-legal research on NICA issues of compensability, notice, elements of claim, elements of damage, service, filing 197.14 Postage charges since 6/16/05, date of filing Petition for Benefits 75.96 Federal Express charges since 6/16/05 date of filing of Petition for Benefits 246.56 Facsimile transmittal charges since 6/16/05, date of filing of Petition for Benefits 214.00 Postage charges incurred in preparing NICA award and obtaining NICA award support documentation 7.59[16] Phone charges incurred in preparing NICA award and obtaining NICA award support documentation 179.88[17] Fax charges incurred in preparing NICA award and obtaining NICA award support documentation 62.56[18] AT&T Teleconference charge 127.52 Total $1,162.81 EXPERT WITNESS EXPENSES AND FEES Dr. Andrea Morrison's Expert Witness Fees[19] 12/17/02 Initial Fee $2,000.00 4/25/05 Review of records in preparation of expert opinions 600.00 (2 hours @ $300/hour) 3/27/06 Review medical records in preparation of expert opinions 900.00 (3 hours @ $300/hour) 5/2/06 Preparation for deposition including review of medical records (6 hours @ $500/hour) 3,000.00 Total $6,500.00 Dr. Mary Edwards-Brown's Expert Witness Fees[20] 1/13/03 Review of records and conference (1 hour) $350.00 4/26/06 File review in preparation of expert opinions (1 hour @ $400/hour) 400.00 4/13/06 File review and pre-depo conference in preparation of expert 1,000.00 opinions for deposition (2.5 hours @ $400/hour) Total $1,750.00 DEPOSITION COSTS Robin Batdorf taken on 5/23/06 (original and 1 copy of transcript) 32 pages @ 4.50/page $ 144.00 Exhibits: 6 pages at .50/page 3.00 Court Reporter's per diem 55.00 Total $ 202.00 TRAVEL AND RELATED EXPENSES FOR COUNSEL (JWG) 2/1/06 Attorney expenses for trip to $233.72 Daytona Beach for deposition of Tammy Linton(meals and mileage) 2/2/06-2/3/06 Attorney expenses for 490.45 travel from Daytona Beach to Jacksonville for deposition of Michael Linton, and return to Tallahassee (meals, mileage and lodging) 4/11/06 Attorney expenses for travel from Houston to Los Angeles for meeting with Dr. Morrison 750.83 Total $1,475.00 TRAVEL EXPENSES FOR PETITIONERS 5/30/06 Lodging expense for Tammy Linton (one night stay in Tallahassee for attendance at Final Hearing 5/30/06) $110.39 5/30/06 Lodging expense for Michael Linton (one night stay in Tallahassee for attendance at Final Hearing 5/30/06) 110.39 Total $220.78 In the parties' Pre-Hearing Stipulation, NICA addressed its dispute regarding such expenses, as follows: As to the expenses incurred with respect to their NICA claim, the Petitioners must offer proof substantiating such expenses. Absent such proof, it would be speculative to concede they were reasonable in amount or necessarily incurred in pursing this claim. Moreover, the cost of postage (or Federal Express), research and copying (generally considered as part of office overhead) and the cost of travel (including "air, hotel, meals") are generally not taxable. Finally, with respect to expert witnesses, only a reasonable fee for deposition testimony and costs of preparation of any court ordered report are taxable. See Florida Rules of Civil Procedure, Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Notably, while issues were raised about the necessity and reasonableness of the experts' fees, Petitioners failed to offer expert testimony regarding the services performed and the reasonable value of those services, as required to support an award for expert witness fees. Pertinent to an award of expenses, the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, effective January 1, 2006, provide: Purpose and Application. These guidelines are advisory only. The taxation of costs in any particular proceeding is within the broad discretion of the trial court. The trial court should exercise that discretion in a manner that is consistent with the policy of reducing the overall costs of litigation and of keeping such costs as low as justice will permit . . . . Litigation Costs That Should Be Taxed. * * * Expert Witnesses A reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report. Litigation Costs That May Be Taxed as Costs. * * * B. Reasonable Travel Expenses * * * Reasonable travel expenses of witnesses. Litigation Costs That Should Not Be Taxed as Costs. A. The Cost of Long distance Telephone Calls with Witnesses, both Expert and Non- Expert (including conferences concerning scheduling of depositions or requesting witnesses to attend trial). * * * Travel Time Travel time of attorney(s). Travel time of expert(s). Travel Expenses of Attorney(s) Also pertinent to an award of expenses are the following decisions: Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000)(recognizing that in the absence of exceptional circumstances, travel expenses for attorney to attend depositions should not be taxed as costs); Department of Transportation v. Skidmore, 720 So. 2d 1125 (Fla. 4th DCA 1998)(recognizing that postage, long distance calls, fax transmissions, delivery service, and computer research are overhead and not properly taxable as costs); Lafferty v. Lafferty, 413 So. 2d 170, 171 (Fla. 2d DCA 1982)("[U]pon specific objection to the setting of an expert witness fee without an evidentiary hearing, the prevailing party will have to present testimony concerning the necessity and reasonableness of the fee."); Gray v. Bradbury, 668 So. 2d 296, 298 (Fla. 1st DCA 1996)("The prevailing party's burden, at an evidentiary cost hearing, to recover an expert witness fee is 'to present testimony concerning the necessity and reasonableness of the fee.'"); Powell v. Lorenza, 629 So. 2d 185 (Fla. 5th DCA 1993)(recognizing that evidence to support an award for expert witness fees must come from witnesses qualified in the areas concerned); Gray v. Bradbury, supra, page 298 (Testimony of "a trial attorney and an insurance casualty claim manager, who were not shown to have proficiency in the various fields of expertise at issue (ranging from accident reconstruction to neurosurgery)," was not competent to support an award for expert witness fees.); Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So. 2d 1103, 1109 (Fla. 3d DCA 1994)("[T]he exploration of the possibility of opting out of NICA through the 'bad faith' exception or otherwise is not, as the statute requires, work performed 'in connection with the filing of a claim. '"). Here, it must be resolved that Petitioners failed to establish their entitlement to the disputed expenses. Consequently, Petitioners' recovery is limited to $11,041.60 ($22,352.19 - 11,310.59).
The Issue Whether the Petitioner is eligible for relocation assistance benefits pursuant to 42 U.S.C. 4601 et seq. (P.L. 91-646) and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
Recommendation Application for relocation assistance benefits by Mrs. Marie Lewis Mims be denied. DONE and ORDERED this 14th day of December, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Guy Davis, Jr., Esquire 700 Brent Building Post Office Box 12950 Pensacola, Florida 32576 George L. Waas, Esquire Office of Legal Operations Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Joseph A. Alfes Chief of Right-of-Way Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration (Respondent or AHCA), for medical expenses paid on behalf of Petitioner, Patrick Osmond (Petitioner), from settlement proceeds received by Petitioner from third parties.
Findings Of Fact Petitioner was injured in a single-vehicle collision after he and several underage friends were served alcoholic beverages at an Applebee’s restaurant, owned by Neighborhood Restaurant Partners, LLC (Applebee’s). As a result of his injuries, Petitioner brought suit against Applebee’s, for dram shop liability, and against Joseph Raub, the driver of the vehicle in which Petitioner was a passenger, for negligence. The Complaint also included a claim against the bartender from Applebee’s, however, she was eventually dropped from the lawsuit. After a two-week jury trial, the jury returned a verdict in favor of Petitioner, awarding a total of $41,956,473.73 in damages, allocated as follows: Past Medical Expenses: $436,473.73 Future Medical Expenses: $15,000,000.00 Past Lost Wages: $20,000.00 Future Loss of Earning Capacity: $1,500,000.00 Past Non-Economic Damages: $5,000,000.00 Future Non-Economic Damages: $20,000,000.00 The past medical expenses included $303,757.77 for payments made by Medicaid through AHCA, $13,985.96 for payments administered through the Rawlings Company, and $118,730.00 which represented an outstanding bill from Petitioner’s neurosurgeon. After the verdict, Petitioner reached a settlement agreement with Applebee’s, whereby Applebee’s agreed to pay the sum of $4,300,000.00 to Petitioner. As a condition of the settlement with Applebee’s, the parties executed a Release that included the following language: 1.6 The parties agree that Patrick Osmond’s damages have a total value of $41,956,473.73 (Forty-One Million, Nine Hundred Fifty-Six Thousand, Four Hundred Seventy-Three Dollars and Seventy-Three Cents), of which $317,743.73 (Three Hundred Seventeen Thousand, Seven Hundred Forty-Three Dollars and Seventy-Three Cents)[1/] represents the past medical expenses paid for by Medicaid. Given the facts, circumstances and nature of Patrick Osmond’s injuries and this settlement, $35,568.73 (Thirty-Five Thousand, Five Hundred Sixty-Eight Dollars and Seventy-Three Cents) of this settlement has been allocated to Patrick Osmond’s claim for past medical expenses paid by Medicaid and the remainder of the settlement has been allocated toward the satisfaction of claims other than past medical expenses paid by Medicaid. After the jury verdict was rendered, Petitioner recovered $25,000.00 in settlement from Joseph Raub and his insurers. As a condition of the settlement with Mr. Raub, the parties executed a Release that included the following language: The parties agree that Patrick Osmond’s damages have a total value of $41,956,473.73 (Forty-One million, Nine Hundred Fifty-Six Thousand, Four Hundred Seventy-Three Dollars and Seventy-Three Cents), of which $317,743.73 (Three Hundred Seventeen Thousand, Seven Hundred Forty-Three Dollars and Seventy-Three Cents) represents the past medical expenses paid for by Medicaid. Given the facts, circumstances and nature of Patrick Osmond’s injuries and this settlement, $190.43 (One Hundred ninety Dollars and Forty-Three Cents) of this settlement has been allocated to Patrick Osmond’s claim for past medical expenses paid by Medicaid and the remainder of the settlement has been allocated toward the satisfaction of claims other than past medical expenses paid by Medicaid. After the verdict, Petitioner’s insurer, Geico General Insurance Company (“Geico”), paid its policy limits of $10,000.00 to Petitioner under his Uninsured and/or Underinsured Motorist Coverage. The documentary evidence did not reflect that payment, but its existence was acknowledged by both parties during the argument, and is accepted as a stipulation. The purpose for the payment was not disclosed. The burden in this case is on Petitioner to prove “that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses.” There is no proof that the Geico settlement should be excluded from the amount available to satisfy the Medicaid lien. The $303,757.77 in Medicaid funds paid by AHCA is the maximum amount that may be recovered by AHCA. There was no evidence to suggest that statutory conditions precedent to AHCA asserting its claim or Petitioner bringing this action were not met. The Pre-hearing Stipulation, Respondent’s statement, the stipulation of facts, and the statement of issues of fact that remained to be litigated, indicate clearly that the issue of allocation of the settlement proceeds under sections 409.910(11)(f) and 409.910(17)(b) were the only issues in dispute remaining for disposition. There was no evidence that the monetary figure agreed upon by the parties represented anything other than a reasonable settlement. There was no evidence of any manipulation or collusion by the parties to minimize the share of the settlement proceeds attributable to past medical expenses for Petitioner’s medical care. However, an issue remains as to the correct amount of “past medical expenses” to be used in establishing the proportional amount of those expenses vís-a-vís the total settlement. No portion of the $303,757.77 paid by AHCA through the Medicaid program on behalf of Petitioner represented expenditures for future medical expenses, with all amounts reflected in its Provider Processing System Report being for past medical expenses incurred.
The Issue The issue is whether a request by Reddy Ice for reimbursement of impact fees assessed by the Town of Davie when its ice manufacturing plant was displaced by the Department of Transportation for the construction of Interstate 595 should be granted under the relocation assistance program established pursuant to Section 421.55, Florida Statutes. STIPULATED FACTS 1/ Reddy Ice, Inc., an ice manufacturing company, received relocation assistance and related moving costs from the Florida Department of Transportation (Department) when its plant was moved due to the construction of Interstate 595 in Broward County, Florida. When Reddy Ice relocated its business to the Town of Davie in Broward County, it was paid $108,135.57 in relocation costs by the Department. The Town of Davie had an ordinance which required the payment of impact fees by a business such as Reddy Ice which uses large quantities of water. Payment of the impact fee was a prerequisite to issuance of a certificate of occupancy for the new facility. Reddy Ice was assessed and paid $71,937 as contribution charges to the Town of Davie. The payment was treated as a capital expense in the accounting records of Reddy Ice. The water and sewer service agreement Reddy Ice executed with Town of Davie Utilities Department provided for an upward adjustment of the charges if the actual water flow exceeds the estimated amount. There is no provision in the agreement for a downward adjustment of the impact fee in the event less water is used than was estimated. The impact fees are not reimbursed by the Town if the business moves to another location. Reddy Ice filed a claim with the district office of the Department of Transportation in Fort Lauderdale to recover the impact fees. The district office denied the claim because it was not specifically provided for in the list of eligible move costs categories specified in the Florida Department of Transportation Right-of-Way Policies Manual. See the Manual, Operating Procedures, Relocation Assistance, Section 3-2. The impact fee was considered an additional expense of operating in a new location, which was ineligible for reimbursement under Section 3-3 of the Right-of-Way Manual. The claim was then forwarded to the State relocation office in Tallahassee for review and determination. The State office concurred with the district determination. Because the claim for impact fees presented a relatively unique relocation issue, and federal funds are involved in the repayment of relocation costs for interstate highway construction, a national ruling was requested from the Federal Highway Administration. Ms. Barbara Reichart, Chief, Relocation Division, Federal Highway Administration, Washington, D.C., advised on May 27, 1987, that the Florida Department of Transportation and the Federal Highway Administration Division Office were correct in their determination that impact fees were ineligible for reimbursement as relocation costs under 49 CFR Section 25.305(f). Impact fees are considered by the Federal Highway Administration to be an additional operating expense incurred by a business because of operating in a new location. Reddy Ice was advised of the final determination and denial of the claim by letter dated August 25, 1987, which resulted in this administrative proceeding.
Recommendation It is recommended that the application of Reddy Ice for reimbursement of contribution charges made by the Town of Davie be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division OF Administrative Hearings this 5th day of May, 1988.
The Issue The issues are whether, pursuant to section 409.910(17)(b), Florida Statutes (17b),1 Petitioner has proved that Respondent's recovery of $535,312 in medical assistance expenditures2 from $5 million in proceeds from the settlement of a personal injury action must be reduced to avoid conflict with 42 U.S.C. § 1396p(a)(1) (Anti-Lien Statute)3; and, if so, the maximum allowable amount of Respondent's recovery.
Findings Of Fact On September 28, 2005, Petitioner was born by an unremarkable delivery at 42 weeks' gestation at a hospital in West Palm Beach. On October 1, 2005, from all appearances a healthy infant, Petitioner was discharged to home. However, Petitioner was born with an extremely rare metabolic disorder known as B-ketothiolase deficiency (BKT), which prevents the body from processing a protein building block called isoleucine and impedes the body's processing of ketones. A few weeks after Petitioner's birth, the birth hospital began screening that would have detected this condition and permitted timely management and treatment of this serious condition. Petitioner progressed normally until, at the age of five years, she acquired an infection that caused her to suffer a decompensation attack and guardian," and DOAH Case 20-2124MTR identifies by name a parent, "individually and as parent and natural guardian of A. F., a minor." As to the latter case, the same attorneys represent the petitioner and respondent as represent Petitioner and Respondent. 9 Resp.'s proposed final order, footnote 2. metabolic crisis. Over the span of a few hours, Petitioner suffered irreversible and progressive atrophic changes to her basal ganglia. This brain damage produced, among other permanent conditions, intermittent painful spasms, multiple times during the day and night, that cause Petitioner to thrash her head about wildly, to arch her back into an extreme "U-like position," and uncontrollably to scratch her eyes or mouth until the spasm ends or her arms are secured or become entrapped in the wheelchair. Otherwise, Petitioner's arms and legs are in a permanent state of contracture, so as to be of little use to her, and her head is typically deviated to the left. Unable to walk, Petitioner requires the use of a wheelchair for mobility, but chronic pain, especially in her back, prevents her from remaining in the chair for more than 30 minutes at a time. Unable to maintain any position for very long, Petitioner is unable even to watch television or a movie. Petitioner attends school, where she is assisted by a one-to-one paraprofessional, but, due to pain, she typically finds it necessary to leave, often in tears, prior to the end of the school day. Petitioner is completely dependent on others for all of the activities of daily living. She is fed through a gastrostomy tube. Without respite care, Petitioner's mother is unable to leave her daughter unattended and provides nearly all of the required care. Among many other things, the mother secures Petitioner to her bed, changes her position, stretches her, brushes her teeth, and takes her to appointments, including brain stimulation therapy in Gainesville twice weekly to help with the spasms. The impact of Petitioner's condition upon the family is nearly inestimable. For instance, nearly the entire family must accommodate Petitioner's desire to go to an amusement park, as the mother, Petitioner's father, and the older of their other two children must help to get Petitioner into one ride. Petitioner's ability to speak is limited, and she lacks the means of expressive communication by writing or a keyboard. The frustration of these communication barriers is heightened by the fact that Petitioner is likely to be cognitively intact, meaning that she is substantially "locked in," so as to understand what is going on about her, but is unable to express herself, even by body movement or gesture. No single measure adequately conveys the extensive care required just to maintain, to the maximum extent possible, Petitioner's present, limited functionality. When assessed for a life care plan, Petitioner was being seen by nine different physicians, three therapists, and the school nurse; was taking nine different medications; and was served by or consumed nearly two dozen items of equipment or supplies. In 2013, Petitioner filed a personal injury action in circuit court in West Palm Beach against the birth hospital and its corporate parent. The case presented three major problems in establishing liability. At the time of Petitioner's birth, only two hospitals in the state of Florida provided BKT screening at birth, and the birth hospital was not one of them. However, the corporate parent owns numerous hospitals in other states, and at least some of these hospitals were providing BKT screening at the time. Petitioner's ability to establish a favorable standard of care was thus dependent on keeping the corporate parent in the case, even though its liability was attenuated. Petitioner's task was complicated by a Florida statute that explicitly provides that the failure of a healthcare provider to provide supplemental diagnostic tests is not actionable if the provider acted in good faith with due regard to the prevailing standard of care.10 Lastly, Petitioner was confronted by a causation issue because, when informed of Petitioner's rare metabolic condition, the parents did not immediately obtain a screening for her older brother. In September 2017, the circuit judge ordered the parties to submit to two summary jury trials, in which each side had a little over one hour to present the case to actual jurors for a nonbinding verdict. Each party devoted 10 § 766.102(4). nearly all of its allotted time to a presentation on liability, not damages. One jury returned a verdict for the defendants, and the other returned a verdict for the plaintiffs, awarding $23.5 million as follows: the loss of earning capacity and future medical expenses after the age of 18 years--$10.5 million; past and future pain and suffering--$5 million; past and future medical expenses until the age of 18 years--$5 million; and the parents' loss of consortium--$3 million. In the ensuing settlement negotiations, the defendants' counsel did not contest the damages. Significantly, in calculating future medical expenses and loss of earning capacity, both sides chose conservative reduced actuarial values with only four years separating their choices. Additionally, the defendants' counsel did not contend that a timely screening might not have prevented the injuries. Instead, the defendants' counsel argued the above-described liability and causation issues. The plaintiffs' counsel opposed these arguments and, secondarily, argued that the $23.5 million summary jury verdict was too low due to the necessity of counsel's preoccupation with liability during their presentations. Nearly one year after the summary jury verdicts and after extensive discovery and the expenditure of about $200,000 in costs by the plaintiffs, the parties reached the settlement described above. By any standard of proof, Petitioner has proved that the true value of her case was at least $23.5 million, including $535,000 for past medical expenses, and that the $5 million settlement was driven by concerns as to liability and causation, not damages. The only noteworthy damages component in the true value is Petitioner's past and future pain and suffering, which could have supported a larger value based on the Florida Supreme Court's jury instructions on the matter.11 11 Florida Standard Jury Instructions in Civil Cases, Appendix B, Form 2, states in part: What is the total amount of (claimant’s) damages for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, aggravation of a disease or physical defect (list any other noneconomic damages) and loss The $5 million settlement represents a discount of $18.5 million or 78.7% when compared to the true value of the case. Applying the same discount to $535,312 results in Respondent's recovery of $114,021.
The Issue The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.
Findings Of Fact Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities. DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Patricia C. Ellis, City Attorney City of Opa Locka 777 Sharazad Boulevard Opa Locka, Florida 33054 Francine M. Ffolkes Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioners purchased the property here involved in 1961 and occupied it as their residence until April 1991 when they moved to a new home they had just completed. The Hillsborough County Northwest Expressway was in the talking stage for several years before the final route for the Expressway was decided. Numerous public hearings were held before the final route of the Expressway was determined. Throughout most of these meetings and discussions Petitioners' property was deemed likely to be in the right-of-way of the Expressway and subject to taking. Anticipating their property would be taken for the Expressway, Petitioners, in 1989, purchased another lot on which to construct a residence. The Tampa-Hillsborough County Expressway Authority was designated as agent for the Florida Department of Transportation to acquire the necessary rights-of-way for the proposed Northwest Hillsborough County Expressway Project. In turn the Expressway Authority designated O.R. Colon Associates, Inc. (Colon) to serve as its agent in acquiring the property needed for this project. The ultimate route of the Northwest Expressway was determined and property owners on the selected route were sent a letter in January 1991 informing them that their property would probably be taken and that the Expressway Authority would negotiate with the owners of all parcels of property to be acquired to arrive at a fair price to be paid for their property. That letter further provided that: In order to facilitate construction of this project, the Authority will begin the appraisal and relocation survey of your property, after which you will be offered the fair market value of your property based upon an independent appraisal. * * * In addition to receiving payment for the fair market value of your property, you may be entitled to certain relocation assistance payments and other costs payable only during the settlement process. (Emphasis added) Petitioners also had a business occupying the same property on which their residence was situated. This business was incorporated and did not move from the property until after Petitioners had moved into their new residence in April 1991. Subsequent to moving their residence from the property to be taken for the Expressway project Petitioners were shown a relocation brochure (Exhibit 2) prepared by Colon which contained information regarding relocation benefits. The first personal contact with Petitioner was made by an employee of Colon on January 16, 1992 at which time a written offer to purchase the property for $116,400 was presented to Petitioners.
Recommendation It is recommended that a Final Order be entered dismissing Verlyn Spivey's and Sandra Spivey's application for relocation benefits associated with the taking of their property in the right-of-way of the Hillsborough County Northwest Expressway. DONE and ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1992. COPIES FURNISHED: RONALD R SWARTZ ESQ 610 WATERS AVE - STE J TAMPA FL 33604 CHARLES G GARDNER ESQ ASST GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 THORNTON J WILLIAMS ESQ GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458 BEN G WATTS/SECRETARY ATTN: Eleanor F. Turner DEPARTMENT OF TRANSPORTATION HAYDON BURNS BLDG - MS 58 605 SUWANNEE ST TALLAHASSEE FL 32399 0458
The Issue The issue for consideration in this case is whether Petitioner received appropriate relocation assistance for her home and business as a result of the Department’s taking.
Findings Of Fact For several years during the mid to late 1990’s, and specifically during 1996 and 1997, the Department of Transportation was engaged in acquiring property in Pasco County, Florida, for the construction of the Suncoast Parkway, a new corridor which, when completed, will extend approximately 42 miles from the Veteran’s Expressway in Hillsborough County in the south to a connection with US Highway 98 in Hernando County in the north. In support of that project, it became necessary for the Department to acquire approximately 639 individually owned parcels of land. To facilitate the planning for and purchase of this property, the Department utilized the services of several engineering firms, including the firm of Post, Buckley, Schuh, and Jernigan, Inc., (PBS&J). PBS&J’s manager for this project was Norris Smith, who has been employed with the company in this type of work for approximately eight years. PBS&J, as general consultant for the Turnpike District, also manages other firms working on road construction projects for the Department. Included among these firms utilized on the Suncoast Parkway project were Gulf Coast Property Acquisitions (Gulf Coast), and Universal Field Services (Universal). In acquiring the identified individual parcels which make up a specific project, the procedure usually followed calls for a relocation specialist to make the original calculation of the relocation payment to the property owner. This calculation is then put through a review process during which it is evaluated for approval by the project manager. In the instant case, the initial relocation specialist was Gary South, an employee of Gulf Coast, who made the initial relocation contact with the Petitioner. However, Mr. South took ill in January 1997, and was replaced on this project by David Cole. Mr. Cole has worked with Gulf Coast as a relocation specialist since 1993, and, since 1970, has worked as a relocation specialist under the Uniform Relocation Assistance Act (Act) in five states. He has participated in relocations involved in approximately 70 parcel acquisitions on the Suncoast Parkway project. Relocations of individuals displaced as a result of property acquisitions for road construction are accomplished under the guidelines of the Uniform Relocation Assistance Program memorialized in 24 C.F.R., Part 24. These guidelines have been adopted by the State of Florida and are incorporated in the Department of Transportation’s Rule 14-66. Once the Department is tasked to undertake a construction project in which land is to be acquired or businesses are to be relocated, it conducts one or more public hearings in the area of development to explain the scope and dimensions of the project. After that, relocation specialists visit each residence and business to speak with the resident or business owner and conduct a needs assessment survey which is supposed to be used as a guide to determine the type of relocation assistance necessary. It is at this visit that the relocation specialist provides the resident or business owner with a relocation brochure which explains the process and the displacee’s rights and responsibilities in detail. The displacee’s prior term of tenancy of the property determines his/her eligibility level for relocation assistance payments. If the resident/occupant has been in the property for 180 days or more, he or she is eligible for relocation payments of up to $22,500 in addition to benefits to cover moving personal property to the new dwelling. If the resident/occupant has been a tenant in place for 90 to 179 days, he or she is eligible for a rental assistance payment not to exceed $2,500 which may be used either FOR rent payments on a replacement rental property or as a down payment on the purchase of a new home. Consistent with the described procedure, Gary South conducted the needs assessment survey of Petitioner’s household in February 1996 during which he informed Ms. Dornseif of the relocation services available. It was determined during that survey that there were two residences as well as three business on the Dornseif property. One of the residences was occupied by Petitioner and her family. The other residence was occupied by Petitioner’s father, Mr. DeClue. Mr. DeClue was determined to be a 180-day homeowner/occupant eligible for benefits, while Petitioner was classified as a 90-day tenant and eligible for rental assistance payments and move costs. This information was conveyed to Petitioner by Mr. South. After Mr. South became ill and Mr. Cole took over from him as relocation specialist for this property, Mr. Cole met with Petitioner to update the survey and determine that the information previously developed by Mr. South was still accurate. Cole also reiterated the relevant information regarding the relocation advisory services for which Petitioner was eligible. Included in this advice was the information regarding rental assistance payments, as well as the information necessary to calculate that figure. Mr. Cole specifically advised Petitioner that she could utilize the rental assistance payment as down payment on a home. In connection with this move, Mr. Cole updated the household survey relating to the number of people in the home and the number of rooms contained in the house. He also delivered to Petitioner the residential relocation brochure, explained his participation in the process, and delivered the original Notice of Eligibility. He also delivered a statement of eligibility and gave Petitioner a briefing of the amount of money available as a rent supplement and how it was calculated. In addition, he provided Petitioner with a list of available properties. In addition to the verbal communication by Mr. Cole, all the pertinent and necessary information regarding relocation assistance was also included with a Notice of Eligibility which the Department served on Petitioner on July 19, 1996. By this notice, Petitioner was advised of her eligibility for a relocation assistance payment, but because the specific amount of payment is dependent upon financial input from the individual being displaced, the exact dollar amount of the payment may not be available when the eligibility notice is issued. That was the case here. Ms. Dornseif acknowledged receipt of her Notice of Eligibility on July 19, 1996, but because she had not submitted all relevant and required financial information to the Department by the time of eligibility determination, the exact amount of payment had not been determined. Petitioner was informed of that fact and the reason for it. In fact, the required rental and income information needed to calculate the amount of payment to be made was not received by the Department until approximately one year later, when it was submitted by Petitioner’s attorney. Once the required financial information was received by the Department, however, a revised Notice of Eligibility was issued on June 17, 1997, which included the amount to be paid by the Department. According to the Department’s calculations, based on information submitted by the Petitioner, Ms. Dornseif was to receive a rental assistance payment of $7,440.12. This figure was based on the difference between the rental and utility costs at the former dwelling and the rental plus utility costs at the replacement dwelling. Under the formula for calculating payment, the difference is multiplied by 42 so as to provide displacement costs to cover 42 months. In implementing the formula, the replacement rental is based on the rental costs of a comparable dwelling on the market at the time of the assessment. It appears that though the land on which the mobile home occupied by Petitioner was located was owned by her, her husband, and her father, Mr. DeClue, the actual residence was owned by her father. It was for that reason that Petitioner was eligible for the rental supplement as opposed to the other allowance. She claims she made all this information known to the Department in advance and was assured it was “OK,” but now asserts she did not know, and was not told at the time, that there was a maximum for rental supplements. The maximum cap for rental assistance payments is set by law at $5,250. This is less than the amount received by the Petitioner. However, there is a provision in the law for exceeding the cap upon justification by the Department in writing to the federal government. Because of market conditions at the time of the search for comparables for Petitioner, the comparable used in the calculation was the best available. This information regarding the regulatory cap, the calculations made in this case, and the effect that current market conditions had on the calculations, were explained to Petitioner by Mr. Cole. With regard to the actual move by Petitioner from the former residence to the replacement dwelling, Petitioner after being fully briefed both in writing and by Mr. Cole on the procedure to be followed, chose to be reimbursed for the actual costs of the move by a commercial mover. She was instructed to obtain estimates from two commercial movers and advised she would be reimbursed the lower of the two estimates. This was $5,728.62. After the move was completed, Petitioner submitted receipts for the commercial move totaling approximately $6,074.94, but she was reimbursed the $5,662.94. The reduction was made because of some duplications and claims for ineligible items, but Petitioner was dissatisfied with the amount paid. Petitioner also was eligible for reimbursement for the move of her business. In this case, she chose an “in lieu of” payment instead of actual reimbursement for a commercial move. She elected to do this after she had been personally briefed by Mr. Cole on the options available to her for this part of the move. She claims she was told by Department personnel she would receive a fixed amount for the business plus a reimbursement for the business move, but she now contends she received no reimbursement. Petitioner is not satisfied with the relocation assistance payments made to her, claiming that the amounts finally offered were approximately one-half the amount initially estimated by Department personnel. She asserts that all the original estimates by Department personnel were reduced and cut, and she received far less than she was led to expect. She claims her neighbors, who had resided nearby for a far shorter time than she got far more than she did. Petitioner requested that the Department’s calculations of the amounts to be paid to her be independently reviewed. Niether individual who performed the recalculations made any changes to the amounts determined payable. Petitioner then requested another review by a higher authority, and the matter was referred to Paula Warmath, at the time the Right-of Way Manager for the Turnpike District. After her review of the matter, Ms. Warmath did not make any changes to the payment amounts. Petitioner’s next appeal was to Richard Eddleman, the Department’s State Relocation Administrator, the final review authority for relocation assistance appeals. Mr. Eddleman obtained the complete relocation files maintained by the Department on this case, carefully reviewed it, spoke with relevant Turnpike district personnel, and recalculated the relocation assistance payments. Based on his review of the file, Mr. Eddleman concluded that the relocation assistance payments for Petitioner had been properly calculated according to the established rules. This decision was communicated to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order affirming the relocation assistance payments previously calculated for Petitioner. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Vlenda Dornseif 15331 Penny Court Spring Hill, Florida 34610 Andrea V. Nelson, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Suite 562 Tallahassee, Florida 32399-0450
Findings Of Fact On March 21, 1979, the Department of Transportation began negotiations to acquire real property in Dade County, Florida, for a right-of-way in connection with the expansion of I-95. In October of 1979, representatives of DOT found the Petitioner's trailer on land located on the right-of way. This trailer was not being used as a residence, but was used for storage of feed for horses being raised by the Petitioner. The Petitioner claimed to be occupying the property pursuant to a lease from the owner. The representatives of DOT advised the Petitioner that he must move the trailer off the property, but that he could file a claim for relocation benefits. Subsequently, the Petitioner presented DOT with a claim for the expenses of moving the trailer off the subject property. The Petitioner also submitted a lease dated May 1, 1979, from Henry Milander to the Petitioner, leasing the subject property for a term of two years, in support of his claim to be in lawful possession. This lease, however, was not executed by Henry Milander, but by Michael Manin, whose signature was neither witnessed nor notarized. The Petitioner subsequently submitted a power of attorney executed by Henry Milander to Michael Manin, dated approximately three years prior to the date of the Petitioner's lease. This power of attorney was witnessed, but was not notarized. Neither the lease nor the power of attorney had been recorded on the public records of Dade County. The DOT representatives conducted a title search, and found that the record owner of the subject property was Ruth Milander Tabrah, as trustee of a trust established by Henry Milander in 1955. This trust had not been terminated, and was in existence during the time periods relevant to this proceeding. Thereupon, the DOT advised the Petitioner that his claim for relocation benefits had been disallowed because his occupancy of the subject property was "inconsistent with the rights of the true owner". The Petitioner's request for a formal administrative hearing challenges the determination of DOT that he is not eligible for relocation benefits.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of Richard E. Kimball for relocation assistance payments be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1982. COPIES FURNISHED: Richard E. Kimball 18930 S.W. 312 Street Homestead, Florida 33030 Charles G. Gardner, Esquire 562 Haydon Burns Building Tallahassee, Florida 32301
